S v Chao and Others

• Jurisdiction: South Africa
• Judge: NC Erasmus J
• Judgment Date: 03 February 2009
• Citation: 2009 (1) SACR 479 (C)
• Docket Number: SS 103/08
• Counsel: C Webster SC (with HC Booysen and C Breytenbach) for the State. JC Louw for accused 1, 2, 18 and 19. W King for accused 3 and 16. P Mihalik for accused 5 and 17. DAJ Uijs SC for accused 4, 6 and 7. MS Banderker for accused 8, 9, 10 and 11, instructed by the Legal Aid Board. D Theunissen for accused 12, instructed by the Legal Aid Board. WM Muller for accused 13, 14 and 15, instructed by the Legal Aid Board.
• Court: Cape Provincial Division

S v Chao and Others
2009 (1) SACR 479 (C)

2009 (1) SACR p479

Citation	2009 (1) SACR 479 (C)
Case No	SS 103/08
Court	Cape Provincial Division
Judge	NC Erasmus J
Heard	November 20, 24, 27, 2008; January 22, 2009
Judgment	February 3, 2009
Counsel	C Webster SC (with HC Booysen and C Breytenbach) for the State.; JC Louw for accused 1, 2, 18 and 19.; W King for accused 3 and 16.; P Mihalik for accused 5 and 17.; DAJ Uijs SC for accused 4, 6 and 7.; MS Banderker for accused 8, 9, 10 and 11, instructed by the Legal Aid Board.; D Theunissen for accused 12, instructed by the Legal Aid Board.; WM Muller for accused 13, 14 and 15, instructed by the Legal Aid Board.

Flynote : Sleutelwoorde

Prosecuting authority — National Director of Public Prosecutions — Authorisation B to charge person with racketeering offences — To be distinguished from issue of prosecutor's locus standi or his or her decision to prosecute — Prevention of Organised Crime Act 121 of 1998, s 2(1) read with Criminal Procedure Act 51 of 1977, s 106(1)(h).

Prosecuting authority — National Director of Public Prosecutions — Authorisation C to charge person with racketeering offences — Proof of authorisation — Mere production of authorisation by prosecutor constituting prima facie proof of authorisation — State not required to prove process by which NDPP arriving at decision to authorise prosecution — Any challenge to such process to be brought by way of substantive application — Prevention D of Organised Crime Act 121 of 1998, s 2(1) read with Criminal Procedure Act 51 of 1977, s 234(2)(b).

Prosecuting authority — National Director of Public Prosecutions — Authorisation to charge person with racketeering offences — Whether lapsing when matter struck from roll — Matter struck from roll due to unreasonable delay in proceedings — Condition of removal that resumption of trial would E require written permission of Director of Public Prosecutions — Distinction between resumption of trial and institution de novo — NDPP's decision lapsing in latter instance but not in former — Magistrate having chosen former — Authority to prosecute not affected by striking off — Authorisations still valid — No new authorisation required — Prevention of Organised Crime F Act 121 of 1998, s 2(1) read with Criminal Procedure Act 51 of 1977, s 342A.

Headnote : Kopnota

At their first appearance in the regional magistrates' courts, each of the 19 accused was served with a draft charge-sheet that reflected, inter alia, charges under s 2(1) of the Prevention of Organised Crime Act 121 of G 1998 (POCA) (counts one and two). The matter was transferred to the Cape Town regional magistrates' court where, following an objection in terms of s 342A of the Criminal Procedure Act 51 of 1977 (CPA), the case was postponed to 28 January 2008 on certain conditions, which included that the National Director of Public Prosecutions (NDPP) had to supply POCA authorisations under s 2(4) of that Act by the postponement date. H On the day the s 2(4) authorisations were handed up, but the magistrate was not satisfied that the State had complied with the remaining conditions of the postponement and accordingly struck the matter from the roll under CPA s 342A, while stipulating that the matter could not be re-enrolled without the written permission of the Director of Public Prosecutions (DPP). The DPP proceeded to issue written instructions for all 19 accused I to be arraigned on the charges set out in the indictment. No new s 2(4) authorisations were issued by the NDPP. The accused were rearraigned in the magistrates' court and the matter was transferred to the High Court for trial. At the commencement of the High Court proceedings certified copies of the s 2(4) authorisations dated 28 January 2008 were handed up, the originals being available for perusal by the court. Each of the accused J

2009 (1) SACR p480

A entered a plea of not guilty, coupled with two special pleas, viz that the prosecutor lacked title to prosecute the matter, alternatively that the High Court lacked jurisdiction to hear it. The special pleas were based on the following contentions: (i) the State had failed to prove the s 2(4) authorisations by way of admissible evidence since POCA did provide for them to be proved merely by being handed in to court, which meant that they had B to be proved by way of viva voce evidence; and (ii) the authorisations had in any event lapsed when the matter was struck from the roll; consequently (iii) the prosecutor lacked title, as intended in s 106(1)(h) of the CPA, to prosecute the POCA offences, alternatively the court lacked jurisdiction, as intended in s 110 of the CPA, to hear the matter on the prescribed offences; C alternatively (iv) it appeared with reference to the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and Moodley and Others v National Director of Public Prosecutions and Others 2008 (1) SACR 560 (N) that the State had failed to prove that the NDPP had followed the correct procedure in arriving at his decision to authorise the prosecution, obliging the court to rule that the authorisation was invalid for the lack of rationality.

D Held, as to (iv), that while the NDPP's decision was excluded from the regulatory scope of PAJA, the authorisation and/or decision to prosecute or continue to prosecute still amounted to the exercise of public power and was consequently subject to the rule of law generally and the principle of legality specifically. An administrator exercising a public power (as the NDPP had done in the present instance), was obliged to rationally apply his or her E mind to the decision in question. (Paragraph [28] at 487a-b.)

Held, further, that Moodley and Others v National Director of Public Prosecutions and Others (supra), which was overturned on appeal in National Director of Public Prosecutions v Moodley and Others 2009 (2) SA 588 (SCA), was distinguishable from the present case and therefore did not support contention (iv). (Paragraphs [30] and [31] at 487d-488b.)

F Held, further, that there was in any event no indication that the NDPP had followed an incorrect procedure in arriving at his decision. (Paragraphs [34]-[36] at 488f-489c.)

Held, further, as to (i), that the general rule was that where specialist legislation on a given subject was silent as to its specific regulation, reliance had to be placed on the general legislation governing that subject. In the absence of G any specific provision in POCA regarding the handing-up of official documents, reliance had to be placed on the relevant provisions of the CPA. (Paragraph [38] at 489d-e.)

Held, further, that it was not up to the prosecution to prove the decision-making process preceding the issuing of the s 2(4) authorisations: if that path were H to be explored, it was for the accused to contest the decision-making process in the form of a substantive application. (Paragraph [57] at 493f.)

Held, further, that under CPA s 234(2)(b) the production of an authorisation by the prosecutor constituted sufficient proof thereof, ie the State was not required to lead evidence. (Paragraph [53] at 492f.)

Held, further, as to (ii), that under CPA s 342A(3)(c) the regional magistrate had I a choice between ordering that the matter be resumed or instituted de novo upon proper written instruction. The regional magistrate chose the former option. By this election the regional magistrate made a choice between two distinct scenarios. (Paragraph [63] at 495f.)

Held, further, that when a matter was struck from the roll accompanied by a CPA s 342A(3)(c) instruction to institute the case de novo, everything before it J was spent. It must therefore have been the intention of the regional

2009 (1) SACR p481

magistrate that, on resumption of the case against the accused, everything A that went before it would be retained. (Paragraph [65] at 496b.)

Held, further, that, consequently, the fact that the regional magistrate struck the case off the roll had no effect on the authorisation granted by the NDPP. New s 2(4) authorisations were therefore not required. (Paragraphs [67] and [78] at 496d and 498b.)

Held, further, as to (iii), that reliance on CPA ss 106(1)(h) and 110 was B misplaced. In the normal course of events, CPA s 106(1)(h) applied to the title of the prosecutor appearing before the court. In the present matter the court was dealing with an authorisation to institute proceedings, which had to be distinguished from the prosecutor's locus standi and/or his or her decision to prosecute. (Paragraph [87] and [88] at 500e-g.)

Held, further, that CPA s 110 set out the requirements for a court to obtain C territorial jurisdiction. The court had territorial jurisdiction in respect of the current proceedings. (Paragraph [90] at 501f-502b.)

Held, further, that (1) the POCA s 2(4) authorisations issued on 28 January 2008 remained in existence and valid absent a substantive application to challenge the validity thereof; (2) the order of the regional magistrate of 28 January 2008 did not affect the validity of the said authorisations; (3) the D production of the s 2(4) authorisations in terms of CPA s 234(1) was sufficient and therefore the authorisations were accepted as proof thereof; and (4) the defence's reliance on CPA s 106(1)(h) and, in the alternative, CPA s 110 was misplaced, as neither of those sections was applicable to the content of the pleas raised. (Paragraph [91] at 502c.) Special pleas dismissed. E

Annotations:

Cases cited

Reported cases

Southern African cases F

Hlela v Commercial Union Assurance Co of South Africa Ltd 1990 (2) SA 503 (N): dictum at 507 applied

Moodley and Others v National Director of Public Prosecutions and Others 2008 (1) SACR 560 (N): referred to

Naidoo and Others v National Director of Public Prosecutions and...